Wisdom for the Bar Exam

Tag Archives: bar essays

Thank you again for following the blog. We are almost at 700,00 site visits, so thank you!

I have not yet released my predictions publicly, but I will. Please understand that my enrolled students get access to the predictions first. Our last Bar Exam Cram Session on July 18th and 19th will be the last time we release predictions in our classroom setting. At that point all of our students will have my predictions. Once our students have had an opportunity to have the predictions, I will begin releasing these publicly on the site. It will likely be (as always) the week before the bar exam. For more information about our last Bar Exam Cram Session, click here, we still have some spots left.

In the meantime, however, I wanted to post an approach for Criminal Law Murder. I personally think that Criminal Law Murder is due. While Criminal Law has been tested several times in recent years (including showing up back to back on two consecutive bar rounds), the bar examiners have not tested Criminal Law Murder in several years. So, I think it is safe to say that it is coming soon.

First, a few words about my “predictions” . . .

I can not predict what will be on the bar exam. I have had a lot of luck in making the predictions that I make. I am glad of that. I spend a great deal of time reviewing several years of past exams and put in a lot of effort to come up with these predictions. However, no one can predict the bar exam. And, whatever you hear about predictions, you should NOT study based upon predictions. That being said, I think it is helpful to think about possible essay scenarios that might be a bit more likely to show up on the bar exam because these areas have not been tested in some time.

Also, understand – my theory and philosophy towards the bar exam is to be ready for anything – I firmly believe that is the best way to prepare. So, whether or not Criminal Law Murder shows up on the bar exam this July 2015, you want to walk into the bar exam prepared to write a Criminal Law Murder Essay. That is how you want to prepare for the bar exam.

The following is from an earlier post that I wrote covering the basic murder approach that we have seen traditionally embraced by the California bar examiners. You may have come across this post earlier if you have been searching through older posts. If so, this will be familiar to you – either way it is a good refresher.

Incidentally, if murder were to show up on the exam on day one or day three of the July 2015 bar exam, then I would not be surprised if it were crossed over with some of the lesser tested areas of Criminal Procedure. We have not seen any 8th Amendment issues in some time (see the “Free Stuff” page for a free download of an exam template for this area) and we also have not seen much testing of the 6th Amendment areas of void dire (peremptory challenges, right to an impartial jury, etc.). So these areas could easily be tested this bar round. Evidence is also an area that can repeat and sometimes we see it as a cross-over with Criminal Law, Criminal Procedure (and if you read my post from a few days ago – we have seen it tested with Wills and Community Property as a cross over with marital and spousal privileges).

It is this simple – as I have always maintained over the many years of writing this blog – the bar examiners can test anything on any bar exam round. I do not say this to send you into a panic. It is simply true. As a result, there will be topics that you are hoping for and there will probably be a few you hope not to get – that is the nature of the bar exam. But, you can do it, do NOT give up no matter what you see on the exam. And, remember, you have time to prepare adequately.

The bar exam is still weeks away. I know it does not seem like much time. But, if you use it effectively, then you can absolutely prepare in time. Our students in our last Bar Exam Cram Session generally come in without any approaches to the bar exam and yet, they are able to take the approaches we provide in class and memorize these and write the bar exam using these approaches. So, you have time now to start working on these things. I had to come up with my own approaches to the essays because the commercial bar prep companies at that time were not providing essay approaches. In fact, they still don’t. If I can come up with my own, you can too. Take control over your own bar studies and make certain you prepare from here on forward in such a way that you will know how to write any essay that you face. And, remember you should prepare for every topic, because any topic could come up.

YOU NEED TO HAVE AN APPROACH FOR EACH TOPIC

As a bar taker you will undoubtedly walk into the bar exam and have a very good grasp of the rules for Murder. However, it is very important that you are able to make your way through all of the necessary points efficiently and in a manner that the grader will recognize as a passing or above passing answer. This requires an essay approach. You should walk into the bar exam with approaches to every topic (each bar subject has either one approach or several. For example, Contracts really only has one approach – the approach for Contracts is essentially the same regardless of the Contracts essay, the only differences being whether you write on the Common Law of Contracts only or if you have a UCC exam. On the other hand, Torts has several approaches – a defamation approach, a products liability approach, a negligence approach a torts/remedies approach and a miscellaneous torts approach. I will do my best to write more on these topics as I have time).

DO YOU KNOW HOW TO START WRITING AN ESSAY

My point is that there is a lot you can do to effectively prepare for the bar exam now so that on exam day you know exactly what to do, what to write, how to start your essay, etc.. You should NOT be trying to figure this out on exam day. If you are in that position, you are likely to fail. So please take it upon yourself to prepare NOW for these situations. You know that you are going to have to write essays – so figure out ahead of time how you will start each topic.

Here is a quick, basic essay approach for murder. (Note that you should use a lot of headings and have a physical structure that evidences your approach – this will give the graders a sense that you actually know what you are talking about and it will make your essay far more appealing to read, it will appear organized and it will make it easier for you to write your answer because you have an approach).

APPROACH FOR HANDLING A CRIMINAL LAW MURDER QUESTION

First address: Common Law Murder – Common Law Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought is proven four ways: 1) intent to kill, 2) intent to inflict great bodily injury, 3) depraved heart killings, and 4) felony murder.

(Address the above and then if you have a felony murder issue, prove up the underlying felony (BARRKS – Burglary, Arson, Robbery, Rape, Kidnapping or Sodomy – incidentally, if this area is tested, the examiners may not test one of the above common law inherently dangerous felonies – watch out for a dangerous felony like drug trafficking or another dangerous (but not enumerated as a FMR felony) felony – it forces you to reach a bit and explain that the prosecutor could charge the defendant for felony murder on the basis that it was an inherently dangerous felony, but not a common law enumerated (BARRKS) felony)

Then move onto:

Statutory Degrees of Murder

First Degree Murder: First degree murder is the intentional killing with malice aforethought, premeditation and deliberation. (here do not spend all day on defining or explaining premeditation or deliberation – it either was premeditated and deliberate (lying in wait, planned, thought out etc.) or it wasn’t – address the issue and conclude and move on).

Second Degree Murder (here is the quick way: “all murders that are not first degree are second degree unless mitigated down to some form of manslaughter”).

Manslaughter

There are two types of manslaughter (Voluntary and Involuntary). If you know right away that the facts support a heat of passion killing, then address that first under Manslaughter as: Voluntary Manslaughter. (By the way, anytime there is a fight that results in a death – you should address heat of passion/voluntary manslaughter)

Voluntary Manslaughter: is a killing that would be murder but for the existence of adequate provocation and insufficient cooling time. (there are elements here that you could develop, but, the reality is that if you have a cross over exam and it involves a full murder discussion – from common law murder to manslaughter, then you simply do not have a lot of time. So spend your time focusing on whether what happened would arouse the passions of reasonable person to kill AND whether or not the person did not have time to cool).

Involuntary Manslaughter: A killing is involuntary manslaughter if it was committed with criminal negligence or during the commission of an unlawful act.

There is also the concept of Misdemeanor Manslaughter Rule – it is simply an accidental killing that occurs while the defendant is engaged in a non-dangerous felony or misdemeanor.

Obviously there are defenses like: Intoxication, Insanity (know the four tests as best you can – this has not been tested in years), self defense, defense of others etc. that can all work to either relieve the defendant of liability for common law murder and reduce the crime down to some form of manslaughter. Keep in mind the above is a basic approach. But, sometimes that is really the best thing to have in your head on the day of the exam. You should have a framework or basic approach and then allow yourself the freedom to write your answer based on the particular fact pattern you face.

We still have a few spots left in this evening’s workshop. This is not just our everyday free, “How to Pass the California Bar Exam Workshop”

Instead, tonight’s workshop will provide a few significant bonuses!

As a bonus, what will be different about this workshop?

I will address the Performance Test (including how to maximize points on this portion of the exam, how to start organized and stay organized on the PT so that you can write a passing or better than passing answer)

I will give out my first set of bar exam predictions to you live in class.

This workshop is our last free workshop prior to the July 2015 bar exam! I will teach the same coverage with respect to how to pass the California bar exam. However, I will also spend time on how to properly approach the Performance Test and will give out my first set of predictions live.

***Parking is free. But to take advantage of free parking, please use the valet parking at the hotel and we will provide you with validation. Space is limited.

Congratulations, you only have one more day! You are the very first group of bar examinees to ever take Civil Procedure MBEs. And, this time tomorrow night you will be done with the bar exam! I know that many of you are anxious about what might show up on tomorrow’s essays and performance test. Hopefully this post will help ease some anxiety. That is my hope. If you feel you need more, be sure to sign up for our tips list (you can sign up below).

I promised I would provide an additional update to the “predictions” that I made earlier. So here we go:

If you have been following my blog you may know that I will not discuss the performance test until next week as there will still be examinees taking the Performance Test this Saturday and Sunday (those examinees that are on a six day exam due to accommodations). However, knowing what I do know about Performance Test A from day one, does not change any of my predictions that I made prior to the exam.

So, here is what I recommend you do this evening. Study . . . some. I really do think it makes a difference to do some studying the night before. Of course, this is up to you. But, I do believe that reviewing material the night before is helpful and I do think that you can still learn new material (although I hope you do not need to learn new material tonight).

Now what should you study?

1) Study any area that you fear seeing on the exam tomorrow. You do not want to walk into the exam tomorrow morning hoping that you do not see a particular topic. Also, don’t be so fearful – review that topic for a little bit and then put it away. Be confident that you will be able to figure it out well enough tomorrow should you see it tested on the essays.

2) Review the “predicted” areas (see earlier posts) and remember there is no way to predict what is going to show up tomorrow, I do not claim that I can do that at all nor do I recommend that examinees study around predictions. But, at this point, the night before the bar exam – it can not hurt to entertain some of the possible essay scenarios that could show up and give these a little thought.

Here are some of the areas I would likely consider for tomorrow:

Professional Responsibility could show up tomorrow as either an essay or on the Performance Test or both. My thoughts are it could be absent from the essays – occasionally the bar examiners skip it from the essays altogether. This is generally not the case, however, so I would prepare as though Professional Responsibility is going to be on one of the essays tomorrow.

Constitutional Law (possibly Dormant Commerce Clause) could come up – please read earlier posts for details. Review my earlier posts and review the handout we provided (through Bar Exam Tips Emails) for approaching the Constitutionality of a state or federal statute. There is a particular approach for this that the bar examiners embrace – and – it is different depending upon whether you are asked to evaluate a state law or a federal law. Keep in mind that in addition to your typically required State Action and Case or Controversy requirements (standing, ripeness, mootness, and must not involve a political question) that when evaluating a state statute you need to address whether the state (or subdivision of the state – county, city, etc.) has the power to act. The power for the state to act would need to stem from those reserved to the state via the Tenth Amendment (states can regulate on behalf of the morals, health, welfare, education or safety of its citizens). There are several remaining steps depending upon the type of regulation that is at issue – assuming you end up facing a Constitutional Law essay tomorrow – it would be a good idea to be prepared for how to approach these areas. If you would like a free copy of our handout for Evaluating the Constitutionality of a State or Federal Law, just add our tips list below and we will send it out. Incidentally, this handout/approach covers how to handle a dormant commerce clause essay – since that IS a state law that is affecting interstate commerce in such a way that might place an undue burden on interstate commerce (that is the issue that comes up in the even that you have a dormant commerce clause exam).

Wills – either alone or crossed over with something else (Trusts, Community Property for example). I think Wills is very possible. Of course, there is NO WAY to predict what will show up on tomorrow’s essays or performance test. If, however, you were to see a Wills essay, the areas of integration, incorporation by reference and acts of independent legal significance are frequently tested (and often – believe it or not – come up together depending upon the essay fact pattern). Also commonly tested in Wills are issues with respect to an omitted or pretermitted heir. Ademption by extinction is also a frequent flyer. Be sure to know these rules so you are comfortable dealing with these areas.

If you do see Wills on the bar exam tomorrow, you may or may not be faced with determining the validity of a will – but if you are – and there is a prior will – then you need to address Dependent Relative Revocation (regardless of whether it will effectively revive a prior will or not – if it is ineffective – then address it and explain why DRR will not work – this is the stuff that passing (and better than passing essays are made of).

What if Criminal Law Murder shows up on an essay tomorrow? If it were me taking the exam tomorrow, I would make sure I reviewed the tests for Insanity Defenses – past bar exam answers instruct us that perfection with respect to the rule statements is not the most important thing and that your ability instead it is 1) your ability to correctly identify the issues and 2) your ability to have a thorough discussion and detailed analysis that is paramount. But, obviously, you will be most comfortable writing in any area if you have a really good grasp of the rules. The tests for insanity have not been tested in several years – so I would give that a quick review and do your best to make sure that you can discuss all four should it be presented on tomorrow’s exam.

What if you were to be tested on Torts again (it was on the July bar exam) – then I would not be surprise if Torts came up as either a cross over with Remedies or if you were to see Defamation or perhaps some of the miscellaneous tort issues (again – review my prior posts from this week – and understand – Torts is not on my list of “most likelies” – just understand that you should be prepared for anything).

Don’t forget that subjects repeat – so far Contract Remedies repeated from July 2014 to February 2015 – anything else from July 2014 can still repeat (read my prior posts about this – even Contract Remedies from day one could repeat). Torts from the last bar round (which was Negligence) could repeat – take a look at Torts, do not dismiss it or assume it can not be tested.

For other possible topic areas for testing, review my prior posts from earlier this week.

3) if you haven’t already, sign up for our tips list and I will send out our predictions and revised predictions to you via email. We will continue to send this out through this evening as long as possible).

You can sign up for our revised predictions and tips list here:

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What else should I do?

Do your best to relax. You have just been through two very long and intense days. You need to have your wits about you for tomorrow. Focus on things that will help you and avoid things that will be counterproductive. What would be counterproductive? Dwelling on how you did (or did not do) on day one’s essays or performance test, talking about what you wrote on day one . . . this will not help, and it generally only leads to more anxiety which is not helpful.

Try to get some decent sleep.

If you can get a decent night’s sleep tonight that would obviously be great. But, recognize it may not be possible and simply be okay with that. Don’t dwell on the fact that you can’t sleep, just try your best to rest. At all times, be positive and keep a good frame of mind. You will do better for it tomorrow.

Don’t give up.

Absolutely do not give up. This test is often as much about perseverance as it is about your studies. And, let’s face it, to study well over a protracted period of time definitely requires perseverance. You graduated from law school For some, perhaps a few, that is relatively easy. But, for most, it takes a lot of dedication and perseverance. So you have this skill, use it tomorrow. Don’t let the test get to you.

Be positive.

This is so important. Tell yourself you are going to succeed. Actively work at being positive. Choose to be positive. Only you can make this choice, I highly recommend it.

Use Headings!

Your exam answer should be attractive and look organized. This should not be news to you, but if it is, be sure to use headings on your exams tomorrow. Let your headings to the heavy lifting for you! Make your exam answer easy to follow.

Write your heart out tomorrow!

The exam graders can not grade or give you points for what never makes it to the page. Whether you are using a laptop or handwriting, be sure to write as much as possible. Be sure to explain your reasoning. If you are dismissing an issue, I recommend that you dismiss it on your answer rather than leaving it off of your exam because you dismissed it in your head. Remember, the grader won’t know if you left an issue off because you chose to dismiss it or because you simply forgot.

I will continue to update this blog tomorrow, so stay tuned if you wish.

Thank you again for following the blog. I mentioned earlier that murder might be on the exam. It has been absent for some time and would seem to be due. Of course, anything is possible. And, if you were studying for the bar at any time in the past couple of years, then you will know that many have been predicting a murder exam for some time. It was on my list of possible essay scenarios for July 2014 (along with Criminal Procedure – which did actually show up on the last exam).

But, most seem to have put aside the idea of a Criminal Murder exam showing up on this bar exam. I would not do that. (But, understand – my theory and philosophy towards the bar exam is to be ready for anything – I firmly believe that is the best way to prepare). And, if you have studied past bar exams, you know that on any particular bar round any subject is possible. Since murder has not been tested in a very long time, it would be a good idea to be prepared for it. The following is from an earlier post that I wrote covering the basic murder approach that we have seen traditionally embraced by the California bar examiners. You may have come across this post earlier if you have been searching through older posts. If so, this will be familiar to you – either way it is a good refresher.

Incidentally, if murder were to show up on the exam on day one or day three of the February 2015 bar exam, then I would not be surprised if it were crossed over with some of the lesser tested areas of Criminal Procedure. We have not seen any 8th Amendment issues in some time (see the “Free Stuff” page for a free download of an exam template for this area) and we also have not seen much testing of the 6th Amendment areas of void dire (peremptory challenges, right to an impartial jury, etc.). So these areas could easily be tested this bar round. Evidence is also an area that can repeat and sometimes we see it as a cross-over with Criminal Law, Criminal Procedure (and if you read my post from a few days ago – we have seen it tested with Wills and Community Property as a cross over with marital and spousal privileges).

It is this simple – as I have always maintained over the many years of writing this blog – the bar examiners can test anything on any bar exam round. I do not say this to send you into a panic. It is simply true. As a result, there will be topics that you are hoping for and there will probably be a few you hope not to get – that is the nature of the bar exam. But, you can do it, do NOT give up no matter what you see on the exam – write your heart out tomorrow.

Did you know that many topics show up back to back (from one bar round to the next) sometimes even three times in a row? Therefore, all bets are simply off on presuming something is not likely to come up.

My main focus in writing during the bar exam days is to simply provide you with something to hang onto, some peace of mind and hopefully even a little bit of sanity.

I know how demanding and draining and how seemingly impossible taking this exam can sometimes feel like to examinees. But, it doesn’t have to be that way – sometimes a few words of encouragement – or a quick review of an approach – like the approach below :) – can be all a person needs to make that little bit of difference between passing and failing. That is why I write here. I tell you this as a source of encouragement: it is completely normal to be a little bit freaked out about tomorrow (assuming you are awake – like most, and are thinking about the exam). This is normal. It is also normal to feel somewhat calm – we are all different. There is no one size fits all approach to this exam. Ideally you would get a good nights sleep before the bar exam. Some do. I never did – and yet I passed. So where ever you are at (asleep early or awake still and reading this post) you can do it!

OKAY – WHAT TO DO IF YOU WERE TO GET A CRIMINAL LAW MURDER ESSAY TOMORROW (OR THURSDAY)?

As a bar taker you undoubtedly have a very good grasp of the rules for Murder. However, it is very important that you are able to make your way through all of the necessary points efficiently and in a manner that the grader will recognize as a passing or above passing answer.

Here is a quick, basic essay approach for murder. (Note that you should use a lot of headings and have a physical structure that evidences your approach – this will give the graders a sense that you actually know what you are talking about and it will make your essay far more appealing to read, it will appear organized and it will make it easier for you to write your answer because you have an approach).

Approach for handling a murder question:

Address: Common Law Murder – Common Law Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought is proven four ways: 1) intent to kill, 2) intent to inflict great bodily injury, 3) depraved heart killings, and 4) felony murder.

(Address the above and then if you have a felony murder issue, prove up the underlying felony (BARRKS – Burglary, Arson, Robbery, Rape, Kidnapping or Sodomy – incidentally, if this area is tested, the examiners may not test one of the above common law inherently dangerous felonies – watch out for a dangerous felony like drug trafficking or another dangerous (but not enumerated as a FMR felony) felony – it forces you to reach a bit and explain that the prosecutor could charge the defendant for felony murder on the basis that it was an inherently dangerous felony, but not a common law enumerated (BARRKS) felony)

Then move onto:

Statutory Degrees of Murder

First Degree Murder: First degree murder is the intentional killing with malice aforethought, premeditation and deliberation. (here do not spend all day on defining or explaining premeditation or deliberation – it either was premeditated and deliberate (lying in wait, planned, thought out etc.) or it wasn’t – address the issue and conclude and move on).

Second Degree Murder (here is the quick way: “all murders that are not first degree are second degree unless mitigated down to some form of manslaughter”).

Manslaughter

There are two types of manslaughter (Voluntary and Involuntary). If you know right away that the facts support a heat of passion killing, then address that first under Manslaughter as: Voluntary Manslaughter. (By the way, anytime there is a fight that results in a death – you should address heat of passion/voluntary manslaughter)

Voluntary Manslaughter: is a killing that would be murder but for the existence of adequate provocation and insufficient cooling time. (there are elements here that you could develop, but, the reality is that if you have a cross over exam and it involves a full murder discussion – from common law murder to manslaughter, then you simply do not have a lot of time. So spend your time focusing on whether what happened would arouse the passions of reasonable person to kill AND whether or not the person did not have time to cool).

Involuntary Manslaughter: A killing is involuntary manslaughter if it was committed with criminal negligence or during the commission of an unlawful act.

There is also the concept of Misdemeanor Manslaughter Rule – it is simply an accidental killing that occurs while the defendant is engaged in a non-dangerous felony or misdemeanor.

Obviously there are defenses like: Intoxication, Insanity (know the four tests as best you can), self defense, defense of others etc. that can all word to either relieve the defendant of liability for common law murder and reduce the crime down to some form of manslaughter. Keep in mind the above is a basic approach. But, sometimes that is really the best thing to have in your head on the day of the exam. You should have a framework or basic approach and then allow yourself the freedom to write your answer based on the particular fact pattern you face.

If you were to get a murder essay, I am thinking it could be in the context of Criminal Procedure (specifically in the context of the 8th Amendment and/or 6th Amendment).

For those of you preparing for the February 2015 bar exam, I wanted to let you know that I will be teaching another free, “How to Pass the California Bar Exam Workshop” on December 3, 2014. This workshop will focus on writing for the California bar examiners as well as: test taking strategies, study plans, and simply how to get through this grueling exam with passing results! If you have failed the bar exam previously, this workshop is an excellent program to jumpstart your studies and to figure out how to prepare differently this time. I will also address the updates to the February 2015 bar exam. The workshop is limited to thirty attendees, so please sign up early to secure your spot.

Unfortunately, we cannot make this workshop available online. However, we hope to see you in person! To register, click here and be sure to check out our Bar Exam Cram Session Website for our other course offerings.

This may be my last post this evening. I noticed that several people were searching this blog for Criminal Procedure. In the past, I have given away several excerpts from our Criminal Procedure Bar Exam Writing Templates. These are still available on this blog, but you would have to search for it. So, I thought I would post links to our 4th, 5th and 8th Amendment Exam Writing Templates. You can download each below: